National Council of Resistance of Iran v. Department of State

NATIONAL COUNCIL OF RESISTANCE OF IRAN, PETITIONERv.DEPARTMENT OF STATE AND COLIN L. POWELL, SECRETARY OF STATE, RESPONDENTS

On Petition for Review of Orders of the Department of State

Before: Henderson, Garland, and Roberts, Circuit
Judges.

The opinion of the court was delivered by: Roberts, Circuit Judge

Argued April 2, 2004

This is the fourth in a series of related cases concerning the biennial designations by the Secretary of State of the Mojahedin-e Khalq Organization (MEK)*fn1 and its aliases as a foreign terrorist organization (FTO). See People's Mojahedin Org. of Iran v. Dep't of State, 182 F.3d 17 (D.C. Cir. 1999) ( PMOI I ); National Council of Resistance of Iran v. Dep't of State, 251 F.3d 192 (D.C. Cir. 2001) ( NCRI ); People's Mojahedin Org. of Iran v. Dep't of State, 327 F.3d 1238 (D.C. Cir. 2003) ( PMOI II ); see generally 8 U.S.C. § 1189. In 1999, and again in 2001, the National Council of Resistance of Iran (NCRI) was determined by the Secretary of State to be an alias of MEK and was accordingly also designated an FTO. See 1999 Designation, 64 Fed. Reg. at 55,112; 2001 Redesignation, 66 Fed. Reg. at 51,089. In May 2003, after a remand to cure certain due process deficiencies, see NCRI, 251 F.3d at 208-09, the Secretary decided to leave in place the 1999 and 2001 designations of NCRI as an FTO. NCRI now again petitions for review. After reviewing NCRI's arguments, the entirety of the administrative record, and certain classified materials appended to that record, we conclude that the Secretary's latest designation complied with the governing statute and all constitutional requirements. We therefore deny the petition for review.

I.

The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) empowers the Secretary of State to designate an entity as an FTO whenever the Secretary determines that (1) the entity is foreign; (2) it engages in terrorist activity; and (3) the terrorist activity threatens the security of the United States or its nationals. 8 U.S.C. § 1189(a)(1). A designation as an FTO persists for two years, after which the Secretary may redesignate the entity as an FTO for a succeeding two-year period upon finding that the statutory circumstances still exist. Id. § 1189(a)(4)(B).

An FTO designation visits serious consequences on the
affected organization: The Secretary of the Treasury may
require financial institutions to freeze any assets of the FTO,
id. § 1189(a)(2)(C); the members and representatives of the
FTO become ineligible to enter the United States, id.
§ 1182(a)(3)(B)(i)(IV), (V); and anyone who knowingly provides "material support or resources" to the FTO -- including
any donation of money -- may be prosecuted and imprisoned
for up to fifteen years, 18 U.S.C. § 2339B(a)(1). The manifest purpose of these provisions is to deny terrorist organizations support -- financial or otherwise -- in and from the
United States. See H.R. REP. NO. 104-383, at 43-45 (1995)
(House Report on AEDPA's primary predecessor bill).

Despite these serious consequences of designation, the governing statute affords suspect entities only "truncated" participation in the administrative process leading to the designation and "quite limited" judicial review after the fact. NCRI, 251 F.3d at 196. As we noted in PMOI I, "unlike the run-of-the-mill administrative proceeding," "there is [under AEDPA] no adversary hearing, no presentation of what courts and agencies think of as evidence, [and] no advance notice to the entity affected by the Secretary's internal deliberations." 182 F.3d at 19. Once the Secretary has designated an entity an FTO, the statute directs us to "hold unlawful and set aside a designation" only if we find it to be:

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitation, or short of statutory right;

(D) lacking substantial support in the administrative record taken as a whole or in classified information submitted to the court [ ex parte and in camera ], or

(E) not in accord with the procedures required by law.

8 U.S.C. § 1189(b)(3). Although the statute permits this court to base its review either "solely upon the administrative record" "taken as a whole," or as supplemented by any classified information submitted by the Secretary, the Act makes no provision for the disclosure of that classified material to the designated entity. See id. § 1189(b)(2), (3)(D); ...

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